Will you move in?
When the Civil Partnership Bill is passed, will it be too dangerous to ask?
We have previously updated you on the Civil Partnership Bill and the imminent recognition of same-sex partnerships. A less publicised aspect of the Civil Partnership Bill deals with co-habiting couples who are living together for a period of time. The Bill provides that once qualifying criteria are met, the more vulnerable in the relationship will be able to make an application to court for provision from the co-habiting partner. In light of these changes, people might be less inclined to ask the big question – “Will you move in?”
The Bill affects anyone who is cohabiting. Cohabitants are defined as opposite sex or same sex couples who “live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other”.
If cohabitants have been living together for more than 3 years, or for 2 years if they have a child together, at the end of the relationship, the more financially vulnerable in the relationship can apply to court for relief from their partner. At present, the Bill provides that time spent living together before the commencement of the Act can be taken into account in establishing whether or not a couple have lived together for the required 2 or 3 years. An action must be taken within 2 years of the end of the relationship and the case may be heard “in camera”, that is, in private.
The kind of relief a cohabitant can seek is similar, though not as comprehensive, as that sought by a spouse on judicial separation or divorce and includes Property Adjustment Orders, Maintenance Orders, Attachment of Earnings Orders, Pension Adjustment Orders, and Application for Provision from the estate of the cohabitant.
Living with someone for the required period and being the more economically vulnerable does not per se mean that you will be entitled to compensation on the break up of the relationship. The court can only grant relief where it is “just and equitable to do so” – that is, where in all the circumstances it appears to the Judge to be the right thing to do
In deciding whether an application for relief can be made, the court will take into account the duration of the relationship, the nature and extent of common residence, the degree of financial dependence or independence, the degree to which the cohabitants present themselves as a couple and whether there are any dependent children.
The question then arises, is there a way to avoid unwittingly falling within the ambit of this legislation? The answer is yes.
The Bill recognises the validity of Co-habitation Agreements. It provides that an agreement between two people, which addresses financial arrangements either during or at the end of their relationship, will be valid if each party has either received independent legal advice, or waived this opportunity in writing, the agreement is in writing and signed by both parties.
In an agreement, a couple can decide to opt out of the provisions of the Civil Partnership Bill referred to above. Such an agreement could only be set aside in very “exceptional circumstances”. What exactly they are remains to be seen.
It appears that co-habitation or co-ownership agreements in force prior to the commencement of the Act will be enforceable and it is recommended that if you wish to avoid any doubt, you discuss these matters with your partner now.
Rachel Rodgers
rrodgers@hayes-solicitors.ie